Australian electoral Commission and emails

I have written to the AEC to ask them to consider parts of their act and to look at monitoring compliance with S44 of the constitution.  Strange things happen.  I have also written to Senator Fierraventi-Wells asking she look at how the S44 of the constitution can work outside the 40 day period after an election is declared,it seems to be a dead law after that time.

The star bit of all this is from the AEC  The Constitution is not a “law of the Commonwealth” for the purposes of section 7 of the Commonwealth Electoral Act 1918

Section 7 of the  Commonwealth Electoral Act 1918  says amongst other things  (g)  to perform such other functions as are conferred on it by or under any law of the Commonwealth.

1. email to Chief Legal Officer of the AEC

I am currently in the processes of petitioning the courts to issue a writ of mandamus to the AEC to enable you to examine S44 of the constitution and compliance by current MPs and future candidates.

Matters woudl be much easier if I could convince you and the board that under section 7 of your electoral Act you can examine any law of the commonwealth and S44 of the constitution is indeed a law.

The Australian Electoral Act specifies what the AEC can examine and is very specific in this,we have discussed this matter at length, but it also includes a requirement to " to perform such other functions as are conferred on it by or under any law of the Commonwealth." That is from section 7 of the Commonwealth Electoral Act.

Surely you could examine S44 of the constitution pro-actively and not have to rely on citizens seeking a writ of mandamus to get you to do what is indicated in the electoral act?

 If you do consider you can check S44 of the constitution for compliance,l quite a few MPs seem to be in parliament illegally and it may take a form letter to all asking they show they comply with S44.

The one I have spoken to you about and which you seem so reluctant to investigate is Mr Abbott.  You have said being born overseas does not necessarily give dual citizenship.

Mr Abbott got his Australian citizenship in June 1981 and used his British citizenship in October 1981 to enter Oxford University.  That indicates dual nationality and the use of both.  This file has copies of the documentation, unfortunately the citizenship file became secret as I was viewing it so I only have the file cover. It does include his actual naturalisation application and approval, no one is doubting Mr Abbott has Australian citizenship.  

His department of Prime Minister and Cabinet has said that the renunciation papers do not exist in FOI 2014/159 and 2015/048.  The 2015 file can be found by you online in the FOI log and is a copy of the 2014 FOI file which because nothing was found isnt listed in the FOI log.

This is a gdrive copy.

The British Home Office under their FOI laws and data protection laws can 'neither confirm nor deny" the existence of renunciation papers, the most telling part is S29 of their Data Protection act which stops the Home Office from indicating anything if the release of that information would be used in a criminal proceeding.  the only way it can be used in criminal proceedings is if the forms do not exist.  The response from the Home Office are attached.

Now it is up to you.

Do you want to wait for a writ of mandamus to be issued to direct you to take notice of S7 of your own act and examine citizenship of MPs and candidates or will you act without the courts directing how you should read your own act?

I believe the information I have passed shows Mr Abbott was born in the UK and used his British citizenship as an adult living in Australia. His departments' FOI and the Home Office FOI would prove he has not renounced his British citizenship and is in contravention of S44 of the Australian Constitution.  Section 7 of your own act allows you to perform such functions as conferred by  laws of the commonwealth, S44 does this as you are the sole arbiter/monitor of electoral laws and practices in the Commonwealth.

Can you please pass a copy of this to the Board as they have written to me and you in the past about this matter.

cheers and thank you


2.  His response

Dear Mr Magrathea

I reiterate the previous advice provided to you in my email of 12 May 2015 “the administration of the Constitution is a matter for the Attorney-General and not the AEC”.  The Constitution is not a “law of the Commonwealth” for the purposes of section 7 of the Commonwealth Electoral Act 1918.  Further the AEC is not mentioned in the Constitution as having any “function” in the administration of that provision.  The AEC has no power to make any findings under section 44 of the Constitution.  That is a matter for the Courts to determine.

Given the extensive correspondence that has been had on this matter and the previous letter to you from the Chairman of the AEC, I place you on notice that the AEC will not be responding to any further correspondence from you on this issue.  

Yours sincerely

Paul Pirani | Chief Legal Officer

An email to Senator Fierraventi-Wells, the Parliamentary Secretary to the Attorney General

1.  

Dear Senator

I am writing to you as Secretary for the Attorney General, he is a busy man and never seems to reply to emails at all.

Section 44 of the constitution can be used within 40 days of an election being declared when two voters in an electorate think their MP is in parliament as a dual national.

How is S44 prosecuted after those 40 days?

The Board of the Australian Electoral Commission have advised me they can not examine citizenship under S44 because of limitations to their Act of parliament they must comply with.

Similarly the Commissioner of the Australian Federal Police have advised they can not look at citizenship problems because the AEC are precluded from examining them.

How is S44 used or is ti a dead law for all but 40 days every three years?

Thanks for your time

& 2. 

I am writing to you as Parliamentary Secretary to the AG.

I wrote and asked you a few days ago how S44 of the constitution works outside the 40 day period after an election is declared.

I have just recieved an email from the chief legal officer at the Australian Electoral Commission stating that "  The Constitution is not a “law of the Commonwealth” for the purposes of section 7 of the Commonwealth Electoral Act 1918."

Section 7 of the Commonwealth Electoral Act 1918 says amongst other things "
(g)  to perform such other functions as are conferred on it by or under any law of the Commonwealth."

The AEC now says the constitution is not a law of the commonwealth so how on earth can a prosecution be made under S44 of the constitution?

Will you as Parliamentary Secretary ask Senator Ronaldson as the minister responsible for the AEC to direct them to examine compliance under S44 of the constitution?

It seems ludicrous that a law of the Commonwealth, a part of our Constitution is not monitored and auctioned by the AEC when that law deals only with electoral matters.  I know S44 is probably the smallest law in our whole judicial system, being just 9 lines long, but it is very important with regard to what the founding fathers intended for this country.

I do hope you can have the matter fixed speedily.

Yours

Tony Magrathea

PS I write to you because Senator Brandis doesn't seem to be able to handle replying to emails, he has no twitter account and no facebook account and hides himself from the great mass of social media users.

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I also wrote to the Attorney Generals Department with a simple question, who monitors S44 of the constitution.  They replied saying the AEC does not monitor S44 of the constitution.
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Dear Mr Magrathea

Thank you for your enquiries concerning section 44 of the Australian Constitution. We respond to each of your questions in turn below.

Monitoring compliance with section 44

The Australian Electoral Commission (AEC) publication Constitutional Disqualifications and Intending Candidates on the Commission website includes the following observations:

There is no provision that requires AEC officers to check all nomination declarations against the provisions of s. 44 of the Constitution, or to reject nominations on the grounds that the declaration is incorrect.

Candidates make a declaration on the nomination form and the AEC is required to accept this declaration at face value for the purposes of nomination.

It is a candidate's own responsibility to ensure that his or her qualifications for candidacy meet the requirements set out in the Constitution and the Act.

A copy of this publication is available online at http://www.aec.gov.au/About_AEC/Publications/backgrounders/constitutional-disqual-intending-candidates.htm.

Non-compliance with section 44

Section 46 of the Constitution provides for the imposition of a penalty for sitting as a senator or member of the House of Representatives, when disqualified under the Constitution, where proceedings are brought in a court of competent jurisdiction.  Section 46 applies only ‘[u]ntil the Parliament otherwise provides’.  The Parliament has otherwise provided by the Common Informers (Parliamentary Disqualification) Act 1975 which now sets out the basis on which a penalty may be recovered.  The Act provides that such a penalty may be recovered where proceedings are brought in the High Court, which has sole and original jurisdiction in suits brought under the Act.  I have enclosed a copy of the Act for your information.

Neither the Attorney-General nor the Attorney-General’s Department provides legal advice to members of the public about the application of constitutional eligibility criteria to particular parliamentarians. If you have queries about the constitutional eligibility of certain members or the operation of the Common Informers (Parliamentary Disqualification) Act 1975, you may wish to seek independent legal advice.

I hope the above information is of assistance.

Regards

Enquiries and Complaints

Attorney-General's Department

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